Political commentary from the LA Times

Sotomayor hearings: Coburn tries to corner judge on abortion

July 15, 2009 | 8:11
am

Tom Coburn, the Oklahoma Republican, apologized for the anti-abortion outbursts of various spectators in the last two days and complimented the judge on her poise. But he immediately turned his attention to abortion and Roe vs. Wade and her opinion about what, exactly, the phrase “settled law” means.

Sotomayor said that Planned Parenthood vs. Casey “reaffirmed the core holding of Roe vs. Wade that a woman has a constitutional right to terminate her pregnancy in certain circumstances.”

Coburn, a physician, then offered up a theoretical problem faced by a pregnant woman who learns partway into her pregnancy that her fetus has spina bifida. Should she be able to have an abortion?

“I can’t answer your hypothetical,” said Sotomayor.

Coburn wondered whether the technology that allows a 21-week fetus born prematurely to grown into a healthy child should have any bearing on the law.
But Sotomayor refused to get into that debate. The law, she said, “has answered a different question. It has talked about the constitutional rights of women in certain circumstances.”

When he kept pressing, Sotomayor demurred: “I can’t answer that in the abstract because the question, if it comes before me, wouldn’t come in the way you form it as a citizen. It would come to me as judge, in the context of some action that someone is taking, the state, a private citizen being controlled by the state challenging that action.”

“All I am asking is should viability be considered as we discuss these delicate issues?”

A third time, Sotomayor refused to be drawn into the debate. “I can’t because that’s not a question that the court reaches out to answer. That is a question that gets created by a state regulation of some sort, or an action by the state, that may or may not, according to some plaintiff, place an undue burden on her. We don’t make policy ...in the court.

Coburn, in a moment of genteel snarkiness, said he was reminded of her infamous quote that appellate courts do make policy (which she instantly disavowed and has been trying to explain ever since). But he didn’t dwell on that and turned his attention to the definition of death.

“Does a state legislature have the right to define the definition of death,” he asked. “Is it within the realm of the Constitution that states can do that?”
That, said Sotomayor, “depends.” The actions of states, she said, are “looked at in the context of what the state is trying to do and what the state is imposing.”
Coburn returned to the influence of technological advances on the discussions around abortion, life and death.

“As recently as six months ago, we recorded fetal heart beat at 14 days post-conception and fetal brain waves at 40 days. We have this schizophrenic rule of the law, we define death as the absence of those, but we refuse to define life as the dependence of those. It concerns me that we are so inaccurate, inconsistent in terms of our application of the logic.”